Affirm in part and reverse and render in part; Opinion Filed 

December 9, 2020

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-20-00652-CV

IN THE INTEREST OF D.P.G., A CHILD

On Appeal from the 196th Judicial District Court

Hunt County, Texas

Trial Court Cause No. 87836

MEMORANDUM OPINION

Before Justices Schenck, Molberg, and Nowell

Opinion by Justice Schenck

Mother and Father appeal the trial court’s order terminating their respective 

parental rights to D.P.G.1 They both challenge the legal and factual sufficiency of 

the evidence to support the trial court’s finding they constructively abandoned 

D.P.G. as the predicate ground for termination of their parental rights. See TEX.

FAM. CODE ANN. § 161.001(b)(1)(N). Mother and Father do not challenge the trial 

court’s finding termination of their parental rights is in the best interest of D.P.G. 

We find jurisdiction over mother’s appeal and affirm the trial court’s termination 

order as to her. We reverse the termination order as to Father. Because the 

 

1 Mother and Father are not married and filed separate appeals. 
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dispositive issues in this case are settled in law, we issue this memorandum opinion. 

See TEX. R. APP. P. 47.4.

JURISDICTION OVER MOTHER’S APPEAL

As a threshold matter, we must determine whether we have jurisdiction over 

Mother’s appeal.2 The following undisputed facts are germane to this determination. 

The termination hearing concluded on May 6, 2020, with the trial court finding 

Mother’s parental rights should be terminated. Mother was not present at the 

hearing, but was represented by trial counsel. On May 14, the trial court entered an 

Order Appointing Appellate Counsel in which it stated it found Mother’s parental 

rights should be terminated, that Mother is entitled to appellate counsel to conduct 

the appeal, and ordered the appointment of Toby Wilkinson as that counsel. The 

trial court did not send a copy of that order to Wilkinson, and there is no indication 

in the record that the order was sent to Mother. It is uncontested that Wilkinson only 

became aware of his appointment when he received an email from the official court 

reporter on July 8, 2020, in connection with the filing of the reporter’s record with 

this Court. He then discovered that the trial court had entered its order of termination 

on June 2. On July 9, he filed a formal notice of appeal and motion for extension of 

 

2

 Jurisdiction over Father’s appeal is not in question. The trial court entered its Order of Termination 

on June 2, 2020, and Father filed his notice of appeal on June 19, 2020, within 20 days of the trial court’s 

order. See TEX. R. APP. P. 28.4 (appeals in parental termination cases are governed by rules of appellate 

procedure for accelerated appeals), 26.1(b) (notice of appeal in accelerated appeal must be filed within 20 

days after the judgment or order is signed).
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time to file on behalf of Mother. Mother’s appellate counsel concedes that Mother’s

motion for extension of time was not timely filed, but urges, given the lack of notice

of her appellate counsel’s appointment, application of the rules governing 

accelerated appeals violates Mother’s due process rights. Given the unique nature 

of this proceeding, the elevated interests involved, and that the delay is entirely a 

product of state action, we conclude that it does.

In this case, the State, through the Texas Department of Family and Protective 

Services (the “Department”), sought to terminate Mother’s parental rights and the 

judge, also acting as an agent of the State, albeit a separate branch of it, concluded 

that her rights should be terminated, and appointed counsel to represent Mother on 

appeal, as required by statute. See TEX. FAM. CODE ANN. § 107.301(a)(1). Yet the 

court did not notify the individual charged with representing Mother’s interests on 

appeal of the appointment, and that counsel was not afforded any opportunity to 

timely file a notice of appeal or a timely motion for extension of time to file the 

notice. See TEX. R. APP. P. 28.4 (appeals in parental termination cases are governed 

by rules of appellate procedure for accelerated appeals), 26.1(b) (notice of appeal in 

accelerated appeal must be filed within 20 days after the judgment or order is 

signed). Thus, we are left to consider: (1) whether any filing in the trial court is the 

functional equivalent of a written notice of appeal and to consider Mother’s due 

process argument; and (2) whether the failure to notify counsel would, on the facts 

before us, deny mother due process in any event. 
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We begin by noting that a notice of appeal is to be filed in the trial court, not 

this Court. See TEX. R. APP. P. 25.1(a). The purpose of the notice of appeal is to 

apprise the trial court and the opposing party that the party suffering an adverse 

judgment intends to appeal and sets the appellate process in motion. 4 C.J.S. § 479. 

In the context of parental termination, subject to a statutory obligation to appoint 

counsel to pursue an appeal, one might wonder, what further purpose the seprate 

notice from appointed counsel achieves? While an order appointing counsel for a 

possible appeal, standing alone, obviously does not absolve counsel with notice of 

his appointment of his obligation to file the necessary notice, we would be inclined 

to find that when the trial court fails to give notice of the appointment to the very 

person charged with timely filing it, the order of appointment has served every 

legitimate interest underlying the requirement of filing a notice of appeal. 

Accordingly, under the circumstances presented here, it might be argued that the 

appointment either served as the notice of appeal or that the failure to serve notice 

to counsel operated as a functional denial of notice of the judgment to the party, 

implicating rule 306a(4).3 At this stage we are aware of no controlling authority 

developing those questions and will pretermit further development of them because, 

 

3 While in the ordinary case, notice to a party of a judgment surely suffices to trigger the relevant 

appellate periods, this is hardly the ordinary case. The State is engaged with a litigant whom it contends is 

manifestly unable to manage her affairs. In a typical case, we would fairly assume that litigants are 

communicating with their counsel to confirm timely management of deadlines and when selecting appellate 

counsel are tracking developments in their case. In this case, however, there is no indication mother was 

even notified of the appointment and, had she been notified, she would likely presume the lawyer was also 

notified and acting according to its terms and purposes. 
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as set forth infra, we conclude that application of the rules concerning perfection of 

Mother’s appeal is unconstitutional as applied here. 

Parental rights are “far more precious than any property right,” and when the 

State initiates a termination proceeding, “it seeks not merely to infringe that 

fundamental liberty interest, but to end it.” Santosky v. Kramer, 455 U.S. 745, 758–

59 (1982). The termination of parental rights involves fundamental constitutional 

rights, and our constitution and statutes provide for one level of appeal as a matter 

of right in termination cases. In re T.V., 8 S.W.3d 448, 449 (Tex. App.—Waco 1999, 

no pet.). As we have previously noted, the accelerated deadline to file a notice of 

appeal in parental terminations cases is a trap for the unwary. In re R.J.S., 219 

S.W.3d 623, 627 (Tex. App.—Dallas 2007, pet. denied). Because of the accelerated 

nature of these cases, trial courts must act expeditiously when appointing new 

counsel for the appeal. In re J.O.A., 283 S.W.3d 336, 344 (Tex. 2009). In doing so, 

it is imperative that the court notify court appointed counsel of the fact of the 

appointment. Failure to do so creates the risk, realized in this case, that counsel will 

not have the ability under our rules to timely file the notice of appeal. Worse still, 

where the parent is informed of the appointment, or even where the parent is merely 

deemed to be on notice of it, the appointment order would affirmatively discourage 

the parent from pursuing a timely pro se appeal or retaining separate counsel. While 

there is no federal due process requirement by which the states would be obliged to 
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provide for appellate review of trial court judgments,4 once the right to pursue 

appellate review has been recognized, the State itself cannot arbitrarily deny it. 

Griffin v. Illinois, 351 U.S. 12, 18 (1956); Lindsey v. Normet, 405 U.S. 56, 77 (1972); 

see also TEX. CONST. art. 1 §13.

While the Department, the parent, and the child all share an interest in a quick 

and final decision, finality cannot trump a parent’s constitutional right to be heard, 

including by appeal where the right to appeal exists. Stanley v. Illinois, 405 U.S. 

645, 646 (1972); In the Interest of M.S., 115 S.W.3d 534, 548 (Tex. 2003); see

also In re B.G., 317 S.W.3d 250, 258 (Tex. 2010) (holding failure to file requisite 

statement of appellate points could not, consistent with due process, form a basis for 

denying parent appellate record and concluding family code section 263.405 was 

unconstitutional as applied to parent); In re J.O.A., 283 S.W.3d at 339, 347 (holding 

that despite parents’ failure to file timely statement of appellate points, due process 

required they be allowed to appeal; “section 263.405(i)5is unconstitutional as 

applied when it precludes a parent from raising a meritorious complaint about the 

insufficiency of the evidence supporting the termination order”). 

 

4 M.L.B. v. S.L.J., 519 U.S. 102, 131 (1996) (Thomas, J., dissenting) (acknowledging the court’s “oftaffirmed view that due process does not oblige the states to provide for any appeal, even from a criminal 

conviction”).

5

Section 263.405(i) has been repealed. It barred an appellate court’s consideration of any issue not 

presented to the trial court in a timely filed statement of points. 
–7–

To be clear, this case does not involve private litigants bungling deadlines in 

a contest implicating their respective property rights. Here, the State, through its 

executive branch, sought to terminate Mother’s parental rights. Thus, this case 

involves a fundamental liberty interest with heightened procedural protections. 

Mother is indigent; thus, the trial court was required to (and did) appoint counsel to 

represent her. TEX. FAM. CODE ANN. § 107.301(a)(1). The statutory right to 

appointed counsel gives rise to constitutional considerations of due process in the 

administration of that right. In re S.K.S., 236 S.W.3d 875, 891 (Tex. App.—

Texarkana 2007, pet. denied). And yet, the trial court, another State actor, in 

appointing counsel failed to give notice of the appointment. In effect, the trial court 

failed to provide Mother with counsel, as mandated by statute, and foreclosed her 

right to appeal within the rules. Accordingly, we conclude that section 263.405 of 

the family code (acceleration of appeals of termination orders) and the appellate 

rules concerning the perfection of appeals, as applied in this particular case, with 

respect to Mother, are unconstitutional and do not preclude this Court from 

considering Mother’s appeal. See, e.g., In re E.R., 385 S.W.3d 552, 562, 567 (Tex. 

2012) (due process prevails over state law time limit).

BACKGROUND

D.P.G. was born on August 9, 2019. He was removed from his parents’ care

shortly thereafter and placed into foster care due to a report that Mother had abused 

amphetamines and during her pregnancy, as confirmed by D.P.G.’s positive test 
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results for amphetamines.6 Both parents met with a Child Protective Services 

caseworker on August 15, 2019, to discuss possible family placement for the child. 

The maternal grandparents and a paternal aunt were identified as possible 

placements. Those potential placements did not come to fruition, however.

On August 16, the Department filed an Original Petition for Protection of a 

Child, for Conservatorship, and for Termination in Suit Affecting the Parent–Child 

Relationship, seeking, among other things, to immediately be named the sole 

managing conservator of D.P.G. The record establishes Mother was served with the 

petition, but Father was not. 

Early in the case, the Department prepared a family service plan to address 

the issues that led to the removal of D.P.G. from Mother’s care. That plan was 

prepared with Mother’s input. The plan’s goal was for reunification and included 

services that were geared toward alleviating or mitigating the cause necessitating the 

placement of D.P.G. in foster care. The Department did not prepare a family service 

plan for Father, presumably as his paternity had not yet been confirmed.

The trial court held an adversary hearing on August 22. The appellate record 

does not contain a transcript of that hearing. The temporary order entered following 

the hearing indicates Mother and Father appeared at that hearing, both unrepresented 

by counsel. At that hearing, the trial court ordered Mother to (1) submit to drug and 

 

6 Mother has two other children who are not in her care. Father is not related to those children. 
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alcohol dependency assessments, (2) participate in psychosocial evaluation and 

counseling, (3) attend parenting classes, (4) submit to drug testing, (5) abstain from 

using drugs, (6) attend Narcotics Anonymous/Alcoholics Anonymous (“NA/AA”) 

meetings three times a week, (7) maintain stable housing and income, and (8) comply 

with each requirement set out in the Department’s service plan, which included 

attending Intensive Outpatient Program/Supportive Outpatient Program 

(“IOP/SOP”) classes. The trial court also ordered Father to submit to genetic tests 

to determine parentage. 

A status hearing was conducted on October 15. The appellate record does not 

contain a transcript of that hearing. The status hearing order indicates Father 

appeared at that hearing, unrepresented by counsel, and Mother did not appear. 

Father was apparently incarcerated at that time as he appeared at the hearing wearing 

an orange jumpsuit. 

A permanency hearing took place on January 9, 2020. Father attended that 

hearing, again unrepresented by counsel; Mother did not attend. The transcript of 

that hearing reveals that Father’s principal concern to that point was with 

establishing his biological relation to D.P.G. Father was advised the genetic testing 

had established that he is D.P.G.’s father. The Department asked the court to order 

Father to (1) complete a substance abuse assessment, (2) attend NA/AA meetings, 

(3) attend IOP/SOP classes, (4) submit to a psychosocial evaluation, and (5) attend 

counseling and parenting classes. The court did so. In addition, the Department 
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advised, at this point, that it was seeking to terminate Mother’s and Father’s parental 

rights.

7

 As a result of the Department’s pronouncement, the trial court appointed 

trial counsel to represent Mother and Father. On January 23, the trial court entered 

an order adjudicating Father as the biological parent of D.P.G. 

A bench trial took place by video conference on April 29 and May 6. Mother 

and Father appeared solely through their trial counsel. The trial court heard 

testimony from Amber Davidson (Department caseworker), Larry Barksdale (Child 

Protective Services supervisor), and Maria Yanez (Court Appointed Special 

Advocates (CASA) advocate). 

Testimony of Amber Davidson

Davidson testified that, at the adversary hearing in August 2019, Mother and 

Father told her they were living in a motel, and Father admitted to marijuana use. 

Davidson met with Mother on August 28, 2019. At that meeting, Mother admitted 

she has a substance abuse problem, her drugs of choice are methamphetamine and 

marijuana, and she had been struggling with addiction for a couple of years. 

Davidson met with Mother and Father during their one and only visitation 

with D.P.G. on September 3, 2019. During that meeting, Davidson gave Mother and 

Father her contact information, including phone numbers and email address. 

 

7

Prior to this point, the record does not indicate that Father was served or otherwise advised of any 

effort to terminate his rights. Rather, as noted, Father appeared to be first interested in establishing the fact 

of paternity.
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Davidson recalled that Mother and Father argued as to whether Father was in fact 

D.P.G.’s father. Another visitation was scheduled for September 23. Neither parent 

attended. According to Davidson, neither parent made any attempt to see D.P.G. 

after September 3, and during the pendency of the case, they had not sent any cards, 

letters, gifts or anything at all to indicate they want to maintain a relationship with 

the child. Davidson last communicated with Mother on September 12, when Mother 

texted her new contact information, including an apartment address. Davidson 

attempted to see that apartment on September 17 and 24, but was not able to obtain

access to the apartment. Davidson did not advise Mother and Father of her plan to 

visit their apartment prior to her arrivals. Thereafter, Davidson attempted to contact 

Mother through Mother’s mother without success.

The Department attempted to place D.P.G. with a relative. The two potential 

placements did not work out.8 The Department prepared a family service plan for 

Mother, with Mother’s input. Davidson confirmed her review of the case file 

revealed the Department did not prepare a family service plan for Father. Mother, 

who did participate in a service plan nevertheless failed to complete a drug and 

alcohol assessment or the requisite parenting classes, did not attend any sessions for 

NA/AA, did not participate in IOP/SOP classes, and did not maintain stable income 

 

8 The maternal grandparents already had custody of Mother’s eldest child, and due to their age, they 

were not in a position to care for an infant. Father’s sister likewise indicated that she was not able to care 

for an infant. 
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and housing, as she promised in entering the service plan. Mother completed the 

initial random drug testing, but failed to submit to subsequent testing as agreed. At 

the adversary hearing, before he was determined to be the biological parent, Father 

was ordered to submit to drug testing. He did not do so. 

Mother and Father were both incarcerated at some time during the pendency 

of the case. Father was still incarcerated at the January 9, 2020 permanency hearing 

and indicated that he believed he would be released in a couple of weeks. Davidson 

was not aware of any signed order requiring Father to complete the services the 

Department requested. Davidson believed Mother was released from jail in March 

2020, but admitted she did not know whether she had been released. She also 

admitted she did not know whether Father had been released, but thought he had 

been based on an inmate search. Davidson attempted to locate Mother and Father 

by reaching out to Mother’s mother and Father’s sister. Those attempts were not 

successful. 

Davidson testified D.P.G. is thriving in his foster placement. He is 

developmentally on target and is well bonded with the foster family. The foster 

parents are interested in adopting D.P.G. Davidson expressed her belief that it is in 

the best interest of D.P.G. to terminate Mother’s and Father’s parental rights because 

they had not attempted to complete the court ordered services, did not have a stable 

home, and could not take care of themselves.
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Testimony of Larry Barksdale

Barksdale was present at the permanency hearing on January 9, 2020. He 

testified that Father was present at that hearing. At that hearing, the Department 

requested that the court order Father to complete various services. The court did so. 

No written order was provided to Father, and Father never contacted the Department 

asking for an order. Father was in shackles at that hearing and could not take notes

about the services he was to complete. Father indicated he believed he would be 

released from jail in a couple of weeks. Barksdale testified that had Father been 

released at that time, he would have had a chance to complete the ordered services. 

Barksdale admitted the services were not designed for an incarcerated person and he 

did not know if Father could participate in the services where he was being detained. 

Father failed to maintain contact with the Department, and Barksdale did not receive 

any information from Father indicating he was working on completing the required 

services. 

Testimony of Maria Yanez (CASA volunteer)

Yanez attempted to observe a visit between Mother and D.P.G. at the end of 

September 2019, but Mother did not attend. Yanez expressed her belief Mother and 

Father cannot meet D.P.G.’s physical and emotional needs due to their drug use. She 

received no indication that Mother and Father have a stable home. She was unable 

to find an address for them. 
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Yanez was able to observe D.P.G. with his foster family. Yanez described 

D.P.G. as being a happy baby and indicated that he and the other children in the 

home were “engage[d] as a normal family.” Yanez confirmed that she had not 

received any cards, letters, gifts or anything that would indicate Mother and Father 

want to continue a relationship with D.P.G. Like Davidson, Yanez expressed her 

belief that it was in the best interest of D.P.G. to terminate Mother’s and Father’s 

parental rights. She confirmed the foster parents are motivated to adopt D.P.G. and 

stated the foster family members are the only faces D.P.G. has consistently seen 

since his birth. 

At the conclusion of the trial on the merits, the trial court found Mother and 

Father had constructively abandoned D.P.G. and the Department had made 

reasonable efforts to return the child to Mother and Father, Mother and Father had 

not regularly visited or maintained significant contact with D.P.G., and Mother and 

Father had demonstrated an inability to provide D.P.G. with a safe environment. 

TEX. FAM. CODE ANN. § 161.001(b)(1)(N). The court further found that termination 

of the parent–child relationship between Mother and Father and D.P.G. to be in the 

best interest of D.P.G. On June 2, 2020, the trial court entered its order terminating 

Mother’s and Father’s parental rights to D.P.G and appointing the Department 

Permanent Managing Conservator of D.P.G. 

DISCUSSION

The involuntary termination of parental rights involves fundamental 
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constitutional rights. In re G.M., 596 S.W.2d 846 (Tex. 1980). The Supreme Court 

has stated that a natural parent’s desire for—and his right to—the companionship, 

care, custody, and management of his child is an interest “far more precious than 

any property right.” Santosky, 455 U.S. at 758–59. A termination decree is final 

and irrevocable, divesting for all time that natural right as well as all legal rights, 

privileges, duties, and powers between the parent and child except for the child’s 

right to inherit. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). Courts have 

recognized that termination of a parent’s rights to his child is “traumatic, permanent, 

and irrevocable.” In re M.S., 115 S.W.3d 534, 549 (Tex. 2003). For these reasons, 

the Texas Family Code and the Due Process Clause of the United States Constitution 

require that grounds for termination of parental rights be proved by clear and 

convincing evidence. TEX. FAM. CODE ANN. § 161.001; Santosky, 455 U.S. at 753–

54. And for the same reasons, we strictly construe involuntary termination statutes 

in favor of the parent. In re E.R., 385 S.W.3d at 563.

To apply the clear and convincing evidence standard of proof in parental 

termination cases, we ask whether the proof is such that a reasonable fact finder 

could have formed a firm belief or conviction about the truth of the allegations. In 

re J.F.C., 96 S.W.3d 256, 263–64 (Tex. 2002). In our legal sufficiency review, we 

consider all the evidence in the light most favorable to the finding. Id. at 266. We 

assume that the fact finder resolved disputed evidence in favor of the finding if a 

reasonable fact finder could do so, and we disregard all contrary evidence that a 
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reasonable fact finder could have disbelieved or found incredible. Id. 

For a trial court to terminate a parent’s right to his child, the State must prove 

by clear and convincing evidence that the parent committed an act prohibited under 

the family code’s section 161.001(b)(1) and that termination is in the child’s best 

interest. TEX. FAM. CODE ANN. § 161.001(b)(1–2).

In this case, the trial court, as the fact finder, concluded Mother and Father 

constructively abandoned D.P.G., a predicate ground for termination under section 

161.001(b)(1) of the family code. Id § 161.001(b)(1)(N). To establish constructive 

abandonment, the Department had to prove by clear and convincing evidence the 

child has been in the permanent or temporary managing conservatorship of the 

Department for not less than six months; and (i) the Department has made reasonable 

efforts to return the child to the parent; (ii) the parent has not regularly visited or 

maintained significant contact with the child; and (iii) the parent has demonstrated 

an inability to provide the child with a safe environment. Id. If there is legally or 

factually insufficient evidence of one or more of these elements, then the finding of 

constructive abandonment fails. In re D.T., 34 S.W.3d 625, 633 (Tex. App.—Fort 

Worth 2000, pet. denied).

Mother’s Appeal

Mother does not dispute that D.P.G. was in the Department’s care for more 

than six months, that the Department made reasonable efforts to return D.P.G. to her,

and that she did not regularly visit or maintain significant contact with D.P.G. She 
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challenges the trial court’s finding concerning the final element only, that she 

demonstrated an inability to provide D.P.G. with a safe environment. In doing so, 

Mother claims the Department was required to conduct a social study of Mother’s 

home to determine whether she could provide D.P.G. with a safe environment and 

that the Department could have conducted such a study because it always knew 

where Mother resided. 

As an initial matter, we note the record establishes the Department did not 

always know the whereabouts of Mother and Mother failed to maintain contact with 

the Department to make a home study possible. In addition, Mother fails to support 

her argument the Department had a duty to conduct a home study with any legal 

authority and ignores the fact that the safe environment determination encompasses 

a multitude of factors, several of which support the trial court’s finding she has 

demonstrated an inability to provide D.P.G. with a safe environment. In re N.A.V., 

No. 04-19-00646-CV, 2020 WL 1250830, at *6 (Tex. App.—San Antonio Mar. 17, 

2020, pet. denied) (mem. op.). Those factors include the child’s age and physical 

and mental vulnerabilities; the willingness and ability of Mother to seek out, accept, 

and complete counseling services and to cooperate with and facilitate an appropriate 

agency’s close supervision; the willingness and ability of Mother to effect positive 

environmental and personal changes within a reasonable period of time; and whether 

Mother demonstrates adequate parenting skills. See In re M.R.J.M., 280 S.W.3d 

494, 506 (Tex. App.—Fort Worth 2009, no pet.). 
–18–

The trial court heard evidence D.P.G. came into the care of the Department 

days after his birth due to allegations of substance abuse. Mother admitted to having 

used methamphetamine and marijuana throughout her pregnancy knowing that 

doing so was harmful to the child. Upon his birth, D.P.G. tested positive for drugs. 

At the time of trial, D.P.G. was less than a year old and in need of constant care and 

attention. A service plan was put into place for Mother to foster reunification. Early 

in the case, Mother was ordered to complete drug and alcohol assessment, to submit 

to a psychosocial evaluation and individual counseling, to complete parenting 

classes, to attend NA/AA or Celebrate Recovery three times a week, to maintain 

stable income and housing, and to submit to random drug testing. Mother did not 

complete any of the required services, other than submitting to the initial drug 

testing. After September 2019, Mother did not maintain contact with the Department 

and did not provide the Department with any information about her living or 

employment circumstances. In light of the foregoing, the trial court could 

reasonably find by clear and convincing evidence that the Department proved 

Mother demonstrated an inability to provide D.P.G. with a safe environment. See, 

e.g., In re G.P., 503 S.W.3d 531, 534 (Tex. App.—Waco 2016, pet. denied)

(upholding finding of failure to provide safe environment where mother failed to 

provide Department with any information about her living or employment 

circumstances, failed to make child support payments, failed to seek out and accept 

counseling services, refused to take required drug tests, and failed to even maintain 
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contact with her child); In re J.J.O., 131 S.W.3d 618, 630 (Tex. App.—Fort Worth 

2004, no pet.) (considering evidence that mother had failed a drug test, had attended 

only half of her parenting classes, and did not complete a psychological evaluation 

or participate in counseling in upholding the trial court’s determination she had 

demonstrated inability to provide her child with safe environment). We conclude

that the evidence was legally and factually sufficient to support the trial court’s 

finding on Mother’s ability to provide a safe environment for D.P.G. We overrule

Mother’s sole issue.

Father’s Appeal

Father does not dispute that D.P.G. was in the Department’s care for more 

than six months, and that he did not regularly visit or maintain significant contact 

with D.P.G. He challenges the trial court’s findings the Department made 

reasonable efforts to return D.P.G. to Father, and Father demonstrated an inability 

to provide D.P.G. with a safe environment. For the reasons set forth herein, we 

conclude the Department failed to present clear and compelling proof Father could 

not provide D.P.G. with a safe environment, and pretermit consideration of his 

complaint concerning the trial court’s finding the Department made reasonable 

efforts to return the child to Father. TEX. R. APP. P. 47.1; In re D.T., 34 S.W.3d at

633 (holding that constructive-abandonment finding fails if there is no evidence of 

one or more elements of subsection (N).

The evidence established D.P.G. came into the Department’s care due to 
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Mother’s actions, not Father’s. There is no evidence Father had knowledge of 

Mother’s drug use during her pregnancy. In addition, in this case paternity was 

questioned, and was the principal point in issue from Father’s perspective until it

was confirmed. Nevertheless, Father appeared at the adversary hearing, the status 

hearing and the permanency hearing. Father did not receive confirmation of his 

parentage until the permanency hearing, which took place five months after D.P.G. 

was born and only approximately three months prior to trial. Father was still 

incarcerated at that time. Unlike Mother, the Department did not prepare a service 

plan for Father. Father was not ordered to complete services until January 2020 and 

the Department failed to establish it was possible for Father to participate in and 

complete the required services while he was incarcerated or at any time between 

confirmation of his parental relation and the trial. Indeed, the record is unclear as to 

when Father may have been released from jail, if at all. Because Father was not the 

reason for the removal of D.P.G., and given the uncertainty of Father’s biological 

relation to D.P.G. and the circumstances surrounding the court’s order that he 

complete services, the timing of that order, and the effect imprisonment may have

had on Father’s ability to work on completing the services, we conclude Father’s 

alleged failure to participate in and complete court ordered services does not 

establish he was unable to provide D.P.G. with a safe environment at the time of 

trial. 

As to other factors that may be considered in connection with a finding of 
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inability to provide a child with a safe environment, the burden of proof was on the 

Department to prove Father’s inability to provide D.P.G. with a safe environment, 

not on Father to prove his ability. In re A.S., 261 S.W.3d 76, 90 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied). Davidson’s conclusory opinion that Father 

had not shown any stability or ability to care for the child is not supported by any 

facts. Thus, the finding that Father has demonstrated an inability to provide D.P.G.

with a safe environment is not supported by clear and convincing evidence. See In 

re J.L.G., No. 06-16-0087-CV, 2017 WL 1290895, at *10 (Tex. App.—Texarkana 

Apr. 6, 2017, no pet.) (mem. op.) (holding evidence insufficient for constructive 

abandonment when there was no evidence, other than conclusory opinions, 

regarding father’s financial resources, employment history, home environment, 

parenting skills, or ability or inability to care for the child); see also Earvin v. Dep’t 

of Family & Protective Servs., 229 S.W.3d 345, 348 (Tex. App.—Houston [1st Dist.] 

2007, no pet.). We conclude that the evidence is legally insufficient to support the 

trial court’s finding concerning Father’s ability to provide D.P.G. with a safe 

environment. TEX. R. APP. P. 47.1. Because the trial court’s finding of constructive 

abandonment under subsection (N) is not supported by legally sufficient evidence, 

the finding cannot support the trial court’s order of termination. See TEX. FAM.CODE 

ANN. § 161.001(b). We sustain Father’s sole issue.

Department as Managing Conservator

The Department requested conservatorship pursuant to Family Code section 
–22–

153.131 and the trial court made the specific findings that the statute requires: that 

appointment of Father as D.P.G.’s managing conservator would not be in his best 

interest because it would significantly impair his physical health or emotional 

development, and that appointment of the Department was in D.P.G.’s best interest. 

TEX. FAM. CODE ANN. § 153.131. Father did not specifically appeal these findings 

or the conservatorship order. Because appointment of the Department as managing 

conservator under section 153.131 is a basis for appointment separate and apart from 

appointment solely as a consequence of a termination decree, separate challenges 

are required on appeal. In re J.A.J., 243 S.W.3d 611, 613 (Tex. 2007). Accordingly, 

we do not disturb the trial court’s order awarding the Department permanent 

managing conservatorship.

CONCLUSION

We affirm the trial court’s order terminating Mother’s parental rights to 

D.P.G. We reverse the trial court’s order terminating Father’s parental rights to 

D.P.G., and we render judgment denying the Department’s request for termination

of Father’s parental rights. 

200652F.P05

/David J. Schenck/

DAVID J. SCHENCK

JUSTICE
–23–

Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

IN THE INTEREST OF D.P.G., A 

CHILD, 

No. 05-20-00652-CV 

On Appeal from the 196th Judicial 

District Court, Hunt County, Texas

Trial Court Cause No. 87836.

Opinion delivered by Justice 

Schenck. Justices Molberg and 

Nowell participating.

In accordance with this Court’s opinion of this date, the trial court’s June 2, 

2020, Order of Termination in this cause is AFFIRMED in part and REVERSED

in part. We REVERSE that portion of the trial court’s order finding Father 

constructively abandoned D.P.G. and terminating the parent child relationship 

between Father and D.P.G. and RENDER judgment denying the Texas Department 

of Family and Protective Services’ request that Father’s parental rights be terminated 

as to D.P.G. In all other respects, the trial court’s order is AFFIRMED. 

Judgment entered this 9th day of December, 2020.